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2023 DIGILAW 401 (JK)

Zubair Ahmad Bhat v. Union Territory of J&K

2023-08-14

M.A.CHOWDHARY

body2023
JUDGMENT : 1. The petitioner Zubair Ahmad Bhat S/O Hamidullah Bhat R/O Okey Kulgam (for short ‘detenue’) through his father, has called in question the detention order No. 31/DMK/PSA/2022 dated 10.04.2022 (for short ‘impugned order’) passed by the District Magistrate Kulgam -Respondent No. 2 (for short ‘detaining authority’), whereby the detenue came to be detained under the provisions of the Jammu & Kashmir Public Safety Act (for short “Act”). 2. Precisely the case of the petitioner is that the detenue was arrested by the police concerned on suspicion of being involved in case FIR No. 03/2022 under Sections 307 IPC, 7/27 I.A Act and 13, 16, 18, 20 of Unlawful Prevention Act registered at Police Station Kulgam. It is further averred that the detenue was not supplied with copy of dossier and other allied material. 3. Respondents have filed their counter to the writ petition and resisted the same on the ground that the activities of the detenue were highly prejudicial to the security of the State, therefore, to prevent him from acting in such activities, he has been detained strictly in accordance with the provisions of Public Safety Act. Respondents further averred that they have followed all the constitutional and statutory safeguards while passing the impugned order of detention. It is contended that the detenue has remained active in anti-national activities. It is contended that the contents of the warrant and grounds of detention were read over to the detenue in the language he understood, and was also informed of his right to make a representation to the Government against his detention. He has in token affixed his signatures on the documents. The grounds of detention are precise, relevant and disclose the need of the hour for detaining the detenue. 4. He has in token affixed his signatures on the documents. The grounds of detention are precise, relevant and disclose the need of the hour for detaining the detenue. 4. Perusal of grounds of detention reveals that on 04.01.2023, the Police station Kulgam received information through reliable sources of presence of terrorists in the village Okay; that the troops of Army 9 RR and 34 RR, contingent of 18th Bn CRPF alongwith the police under the supervision of SSP Kulgam cordoned off the area and launched search operation; that during the search operation, civilians were evacuated with good efforts from the spot; that the terrorists hiding in the house of Hameed Bhat S/O Khazir Bhat R/O Okay, fired indiscriminately with their illegally acquired weapons upon the search party with the intention to kill them; that the search party tried to persuade the terrorists for their surrender which they refused and continued firing upon the search party; that the firing was retaliated in self-defense. On spot it was learnt that the hiding terrorists were Amir Ahmad Wani and Sameeer Ahmad Khan, who were provoking the general public to wage war through armed struggle in order to secede the UT of J&K from the Union of India; that during the course of investigation, the detenue was found involved in the commission of crime and later on was arrested in the said case; that being under custody the detenue had not abstained from seditious and unlawful activities; that it has come-fore through reliable gencies that the detenue is constantly involved in radicalization and motivation of inmates towards anti national activities to the detriment of security of the UT of J&K. 5. Perusal of the record and pleadings do disclose that the detaining authority has complied with the mandate of law and by no stretch of imagination it can be said that the detaining authority has committed any breach which would warrant interference by this Court. 6. Grounds of detention unmask that the detenue had inclination towards unlawful activities which ultimately resulted in detenue becoming a hardcore over-ground worker for terrorist outfits, and in the past he very ingeniously avoided getting incriminated openly but he was found involved in the aforementioned case registered against him. 7. The purpose of J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to the security of the State or maintenance of public order. 7. The purpose of J&K Public Safety Act, 1978, is to prevent the acts and activities prejudicial to the security of the State or maintenance of public order. These acts are preceded by good amount of planning and organization by the set of people fascinated in turmoil. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. 8. It may not be out of place to mention here that grounds of detention are definite, proximate and free from any ambiguity. Detenue has been informed with sufficient clarity what actually weighed with Detaining Authority while passing detention order. Detaining Authority has narrated the facts that made it to exercise its powers under Section 8 of the Act of 1978, and record subjective satisfaction that detenue was required to be placed under preventive detention in order to prevent him from acting in any manner prejudicial to the security of the State. In such circumstances, suffice it is to say that there had been material before detaining authority to come to a conclusion and hence, it cannot be said that subjective satisfaction of detaining authority was wrongly arrived at or grounds of detention are self-contradictory or vague. The role of detenue has been specifically described. 9. Even otherwise it is settled law that this Court exercising writ jurisdiction under Article 226 of the Constitution has limited scope to scrutinize whether detention order has been passed on the material placed before it. It cannot go further and examine sufficiency of material. This Court does not sit in appeal over the decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. 10. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenue from engaging in activities prejudicial to security of the State or maintenance of public order. 10. This Court can only examine grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent detenue from engaging in activities prejudicial to security of the State or maintenance of public order. The following judgments have been rendered by the Hon’ble Apex Court, where this point has been discussed:- i) Union of India v. Arvind Shergill (2000) 7 SCC 601 ; ii) Pebam Ningol Mikoi Devi v. State of Manipura, (2010) 9 SCC; and iii) Subramanian v. State of T.N. (2012) 4 SCC 699. 11. If an order of detention is made only to bypass a criminal prosecution which may be annoying because of inconvenience of proving guilt in a court of law, it would certainly be an abuse of power of preventive detention and detention order would be bad. But if object of making the order of detention is to prevent commission of activities in future, it would be a perfectly legitimate exercise of power to make the order of detention. The Court would have to consider all the facts and circumstances of the case in order to determine on which side of the line detention order falls. The order of detention was plainly with a view to prevent a detenue from continuing the activities which are prejudicial to the security of the State or maintenance of public order. 12. In the above background, it would be apt to refer to the observations made by the Constitution Bench of the Supreme Court in the case of ‘The State of Bombay v. Atma Ram Shridhar Vaidya AIR 1951 SC 157 ’. Para-5 of the judgment lays law on the point, which is advantageous to be reproduced hereunder:- “5. It has to be borne in mind that the legislation in question is not an emergency legislation. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The powers of preventive detention under this Act of 1950 are in addition to those contained in the Criminal Procedure Code, where preventive detention is followed by an inquiry or trial. By its very nature, preventive detention is aimed at preventing the commission of an offence or preventing the detained person from achieving a certain end. The authority making the order therefore cannot always be in possession of full detailed information when it passes the order and the information in its possession may fall far short of legal proof of any specific offence, although it may be indicative of a strong probability of the impending commission of a prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to (1) the defense of India, the relations of India with foreign powers, or the security of India, or (2) the security of the State or the maintenance of public order, or (3) the maintenance of supplies and services essential to the community ......... it is necessary So to do, make an order directing that such person be detained. According to the wording of section 3, therefore, before the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against one or other of the three objects mentioned in the section, and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The wording of the section thus clearly shows that it is the satisfaction of the Central Government or the State Government on the point which alone is 22 WP(Crl) no.549/2019 necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned, as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. The satisfaction of the Government however must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the section. One person may think one way, another the other way. If, therefore, the grounds on which it is stated that the Central Government or the State Government was satisfied are such as a rational human being can consider connected in some manner with the objects which were to be prevented from being attained, the question of satisfaction except on the ground of mala fides cannot be challenged in a court. Whether in a particular case the grounds are sufficient or not, according to the opinion of any person or body other than the Central Government or the State Government, is ruled out by the wording of the section. It is not for the court to sit in the place of the Central Government or the State Government and try to deter- mine if it would have come to the same conclusion as the Central or the State Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders are passed on information and materials which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government.” 13. The preventive detention is aimed at preventing prejudicial activities or preventing the detained person from achieving a certain end. The authority making the order, therefore, cannot always be in possession of full detailed information when it passes the order of detention and the information in its possession, may fall far short of legal proof of any specific offence. Public Safety Act, therefore, requires that the Government must be satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State or the maintenance of public order or the maintenance of supplies and services essential to the community, it is necessary to make an order directing that such person be detained. The Act, therefore, implies that the Government can pass an order of preventive detention it must be satisfied with respect to the individual person that his activities are directed against objects mentioned in the Act and that detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. Thus, it clearly shows that it is the satisfaction of Government on the point which alone is necessary to be established. It is significant that while the objects intended to be defeated are mentioned, the different methods, acts or omissions by which that can be done are not mentioned as it is not humanly possible to give such an exhaustive list. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. There may be a divergence of opinion as to whether certain grounds are sufficient to bring about the satisfaction required by the Act. Whether in a particular case, the grounds are sufficient or not, according to the opinion of any person or body other than the Government, is ruled out by the language of the Act. It is not for the Court to sit in place of the Government and try to determine if it would have come to the same conclusion as Government. As has been generally observed, this is a matter for the subjective decision of the Government and that cannot be substituted by an objective test in a court of law. Such detention orders, the Supreme Court has said, are passed on information and material which may not be strictly admissible as evidence under the Evidence Act in a court, but which the law, taking into consideration the needs and exigencies of administration, has allowed to be considered sufficient for the subjective decision of the Government. 14. The contention of learned counsel for petitioner that failure on the part of detaining authority to provide translated copies of documents relied upon in grounds of detention vitiates the detention, is too fallacious to be accepted. The detenue is a Graduate. The grounds of detention have been well explained to detenue in the language he understands but he never demanded translated copies of any of the documents forming part of grounds of detention. The detenue is a Graduate. The grounds of detention have been well explained to detenue in the language he understands but he never demanded translated copies of any of the documents forming part of grounds of detention. Otherwise also, from relevant provisions of the Act of 1978, dealing with preventive detention, read with the Constitutional mandate under Article 22 (5) of the Constitution of India, I do not find that such requirement is mandatory and failure on part of detaining authority to supply translated copies in all cases, vitiates detention. This may be so if there is a specific request from detenue to supply such copies in a language he understands and then there is failure on the part of detaining authority to respond. Nothing of the sort has happened in the instant case. It is also not demonstrated before this Court as to how this omission on the part of detaining authority has violated rights of the detenue to make any effective representation. He had an option to appear before Advisory Board and make such a submission before it but he has chosen not to do so. In such circumstances, submissions of learned counsel for petitioner are wholly unacceptable and thus, rejected. 15. The Supreme Court in a case ‘Abdul Latief Abdul Wahab Sheikh V. B.K. Jha, 1987 (2) SCC 22 has in unequivocal terms made clear that it is only the procedural requirements, which are the only safeguards available to detenue, that is to be followed and complied with as the Court is not expected to go behind the subjective satisfaction of detaining authority. In the present case, the procedural requirements/safeguards have been followed and complied with by the respondents in letter and spirit. 16. Undoubtedly, personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or maintenance of public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in the case of ‘Sunil Fulchand Shah v. Union of India & Ors. However, where individual liberty comes into conflict with an interest of the security of the State or maintenance of public order, then the liberty of the individual must give way to the larger interest of the nation. These observations have been made by the Supreme Court in the case of ‘Sunil Fulchand Shah v. Union of India & Ors. (2000) 3 SCC 409 ’. 17. To sum up, a law of preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention, and leaves the matter to subjective satisfaction of the Executive. The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of State or maintenance of public order rests on the Executive and it must therefore, have necessary powers to order preventive detention. Having said that, subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinize the merits of administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not. It is often said and held that the Courts do not even go into the question whether the facts mentioned in grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the courts and that is not the policy of law of preventive detention. This matter lies within the competence of Advisory Board. While saying so, this Court does not sit in appeal over decision of detaining authority and cannot substitute its own opinion over that of detaining authority when grounds of detention are precise, pertinent, proximate and relevant. 18. Applying the ratio of the judgments supra and having glance on the discussions made hereinabove, the respondents have complied with the mandate and safeguards provided by the Act. 18. Applying the ratio of the judgments supra and having glance on the discussions made hereinabove, the respondents have complied with the mandate and safeguards provided by the Act. Hence, this writ petition merits dismissal and is, accordingly, dismissed. 19. Detention record, as has been produced by the learned counsel for the respondents, be returned back to him.